Animal Welfare Bill - Standing Committee A

[Mr. Roger Gale in the Chair]

Animal Welfare Bill

Roger Gale: Before we start, I wish to make a personal observation to the Committee. It is my view that while I have been in the Chair—I have no doubt that the same is true of Mrs. Humble’s chairmanship—our debates have at no point been unnecessarily or improperly protracted. However, it is blindingly apparent that a considerable amount of the Bill remains to be debated; it is all important, but some parts are more contentious than others.
Looking at the time schedule, there would appear to be three options. The first is that the Committee simply makes more rapid progress, and that may be the most attractive option to all concerned. The second option is for the Committee to sit from 8 pm until 10 pm this evening. I am perfectly prepared to take the Chair if it does, but I obviously cannot commit Mrs. Humble to that. However, were the usual channels to consider going down that route, the indication that I am prepared to take the Chair is on record. It is entirely a matter for the Committee and it does not require any change to programme motion, but it does require notice to be given to Members and—this is why I mention it now—it requires to be mentioned, as a courtesy, to the Officers of the House, who would be required to provide the services. The third option is that the Committee returns to the House to seek a further day. That would require an amendment to be made to the Order of the House, because the original decision was taken not here but on the Floor of the House.
Those are the three options open to the Committee. I leave it to the usual channels and their sponsors to ponder on the matter this morning and perhaps give an indication later. If we rattle along this morning, however, all of what I have said may prove to be wholly redundant.

Clause 11 - Licensing or registration of activities involving animals

Philip Hollobone: I beg to move amendment No. 207, in clause 11, page 6, line 8, at end insert—
‘(1A)A licence shall be required in all circumstances where an animal is used in a commercial activity.’.
In many respects, the amendment is a warm-up act for new clause 10, which does not appear on the selection list but which I hope to debate. My interest is in the proper statutory licensing of greyhound racing  and in the welfare of greyhounds before they arrive at the race track and after they have finished their racing lives.
The Committee may not be aware that, at any one time, as many as 30,000 greyhounds are involved in the racing industry. The average racing life is between two and three years, which means that about 10,000 greyhounds are retired from racing every year—but only about 2,500 are re-homed, and no one knows what happens to the other 7,500. There is no argument, however, that many of them meet a fairly grisly end. It is my view, therefore, that greyhound racing in the 21st century should be licensed.
The industry has gone some way by introducing a voluntary code of practice, but a large number of greyhound racing tracks do not conform to that voluntary code; at the current rate of progress, I do not foresee them being absorbed into the code in the near future.

Ben Bradshaw: I have some sympathy with what the hon. Gentleman suggests, and I am sure that all members of the Committee would wish to see an improvement in welfare standards at greyhound tracks. The difficulty is that the amendment would require licensing in every case that had an element of commercial activity, including farming. We believe that that would be disproportionate and too prescriptive.
We do not rule out the need in future for a licensing regime for greyhound racing, and a number of other activities. However, we believe that it would best be left to regulation, on which there would be further consultation, rather than taking such a prescriptive approach.

Bill Wiggin: One of the things that worries me, and I suspect my hon. Friend as well, is that, in the schedule outlining roughly when the Government will issue codes of conduct, the code for greyhounds is near the end. That is where the problem lies. We want clearer codes of conduct to be published more quickly specifically for the greyhound tracks that are outside the convention. I cannot remember its exact name, but I think that the Minister understands my point.

Ben Bradshaw: Many of us would like to see all the codes of conduct and the secondary regulation initiated as soon as possible, but that is clearly not feasible. There is a capacity issue here. I suspect that, later this morning, we shall debate the codes of conduct and under which parliamentary procedure they should be dealt with, and there will be choices about how onerous or easy a system we want. There is always a trade-off between speed and scrutiny.
One reason why the code of conduct for greyhounds is not in the first tranche is that we want time to see whether the good work that is taking place on a voluntary basis in the industry—the hon. Member for Kettering (Mr. Hollobone) referred to it—actually works. We have always said that, if it does not, we would not rule out the need for proper regulation and licensing in the future.

Philip Hollobone: I am grateful for the short debate on an issue that I hope is in hon. Members’ minds. We shall refer to it again. If we do not reach it in Committee, I intend to raise it on the Floor of the House. My view is that the industry is not moving quickly enough and that it is time for statutory licensing for greyhounds. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Norman Baker: I beg to move amendment No. 20, in clause 11, page 6, line 13, leave out subsections (3) and (4).

Roger Gale: With this it will be convenient to discuss the following amendments: No. 21, in clause 11, page 6, line 22, leave out ‘or (3)’.
No. 22, in clause 11, page 6, line 24, leave out ‘or registration’.

Norman Baker: First, may I add that I have some sympathy for the previous amendment?
The amendment enables me to explore with the Minister the circumstances under which he would deem licensing to be appropriate and the circumstances under which he would consider registration to be appropriate. I have some doubts about the use of registration, which can be used to justify in people’s eyes activities which, were they licensed, would not secure a licence. In other words, the test is not the same.
My experience from environmental health matters, when I was a council leader in Lewes, was that fast food or hot dog stalls beside a road would put up signs saying that they were registered by the council, as if that was a mark of approval, whereas the council simply registered that they were there without any control of the activities that took place. That was worse than useless; it was counter-productive. Since then, I have had a fear that registration may appear to give validity to an exercise while doing nothing of the sort. It allows what we would regard as unsatisfactory practices to continue.
The Minister may say that registration is appropriate in some cases because licensing carries an administrative burden which, in the case of smaller activities, might be disproportionate. I understand that argument, but I ask him to take my concerns on board and to tell the Committee when he believes that licensing would be appropriate and whether licensing with a different fee level might not be a better option. Small establishments or activities that would otherwise find licensing an onerous burden could then pay less while still having proper concern for the animals for which they cared.

Ben Bradshaw: Again, I have some sympathy with the amendment and I suspect that much of our discussion will turn on semantics.
The hon. Gentleman asked in what circumstances we envisage licensing being more appropriate. Until we debate the various licensing regimes under the secondary legislation powers that the Bill will give us, I would not want to prejudge the issue, but in our  regulatory impact assessment we say that, probably for most of the activities considered in the Committee, licensing would be more appropriate.
However, to return to my point in response to the hon. Member for Kettering on greyhound racing, we are not keen to rule out the option of a lighter-touch regime, which we would call registration, although it could be called a lighter-touch licensing regime with a lower fee and without the requirement, which we shall discuss in a moment, for three-yearly inspections.
We resist the amendment simply to avoid the prescriptive approach whereby we would be bound by a requirement to insist on licensing for every sort of activity in the future. I urge the hon. Member for Lewes (Norman Baker) to withdraw his amendment on those grounds.

James Paice: I do not want to interpret the meaning of the words of the hon. Member for Lewes, but I believe that we are concerned about what registration actually achieves. Does it create a power of inspection, and how does that fit into the legal framework differently from a licensing regime? We are concerned that people can simply register their activity—their sanctuary or whatever—but can still go on in their own sweet way, apart from the duty of care under the welfare codes, which will be applied separately. What does registration carry with it that is different from a licensing regime?

Ben Bradshaw: Without knowing the details of the hot dog stall that the hon. Member for Lewes mentioned, I do not believe that it would be a fair parallel, because registration would allow local authorities to make inspections. Inspectors would have the power of entry to inspect all activities related to registered premises, and local authorities would be able to charge a registration and inspection fee to help to fund those activities. The registration would therefore give local authorities important powers to monitor animal welfare standards, which they would not have were the activities not registered.

James Paice: In that case, will the Minister tell us the difference between that and the licence?

Ben Bradshaw: I have tried to give one example of the difference if the Bill is enacted unamended, which is that the licensing regime would require an inspection at least every three years. We do not believe that that is necessarily essential for every activity.

Bill Wiggin: This is an important point. Leaving aside the initial Bill, what will such a difference mean? If one registers an activity, whether it is a sanctuary or simply the keeping of some sort of animal, there will be quite a lot of pressure from people who may not want one to keep such an animal and who may seek to inspect the activity under cover in the way in which circuses, for example, have been exposed by undercover teams.
If one has a licence, one will have to satisfy the council officer that one is a proper person and will conduct one’s activity properly. My fear is that  registration will be a shortcut that will be undermined and that it will lead to the rather nasty side of animal activity rather than to an open and clear licensing regime.

Ben Bradshaw: I do not accept that. We are simply trying to avoid adopting a one-size-fits-all approach to every activity.

Norman Baker: I am grateful for the Minister’s comments in so far as they have clarified matters.
I accept the logic of the Minister’s view that there should not be a one-size-fits-all prescription, but equally he must accept that guarantees need to be in place to ensure that the animal welfare standards, which he and all members of the Committee want enacted, are enforced and that it is not possible for people to continue to keep animals, albeit often for well meaning reasons in sanctuaries, without any inspection or control over their activities.
I am perfectly happy for there to be a full licensing regime or something less if the circumstances demand it, but that something less needs to be the power of inspection and a system that allows animal abuse or lack of care to be identified early and corrected. If the system allows that, then I am perfectly happy with it.
I believe that the best way forward is a licensing regime with a lower fee arrangement, rather than registration, which is a word that I do not like. Registration suggests a piece of paper that means nothing. The Minister said that that is not what he means, but that is how it is used in other contexts. Having had that exchange, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 ordered to stand part of the Bill.

Schedule 1 - Regulations under section 11

Norman Baker: I beg to move amendment No. 47, in schedule 1, page 33, line 24, leave out ‘3 years’ and insert ‘12 months’.
This is the point about the licence period being extended to three years that the Minister alluded to a moment ago. Paragraph 5 states:
“Regulations may not provide for licences to be granted for a period of more than 3 years.”
As the Minister will know, the frequency of inspections is usually the same as the licence period and therefore the maximum period allowed for in the Bill is too long and ought to equate more with the anticipated inspection regime.
The experience of local authorities in terms of animal legislation and legislation relating to, for example, hot dog stalls or whatever, is that businesses, including those of well meaning people, can go downhill quite quickly. A lot can happen in three years. It is more sensible to go for a 12-month period,  particularly given the flexibility the Minister referred to in the previous set of amendments. If we are to have flexible arrangements with a looser licensing regime, a lower fee and so on, the gold-plated standard for certain premises ought to be 12 months and we could then look at it being less onerous for individual cases.

Ben Bradshaw: The drafting of the Bill reflects both the Government’s view that an inspection and enforcement regime should be proportionate and risk based and our desire not to overburden local authorities too much. We are talking about introducing licensing regimes for a significant new area of activity, but at the same time we did not feel that we should be prescriptive by insisting on annual inspections. If a local authority licenses a long-standing and well run activity, which it feels it does not need to revisit every year, we believe that it should have the freedom to do that. We are not talking about a requirement for an inspection every three years, but a requirement that an inspection should take place at least every three years. Local authorities will still have the power to inspect premises on a much more regular basis if they so wish. We simply do not feel that the Government should take a prescriptive approach.

Norman Baker: I understand the Minister’s concerns. Can he clarify one point for me? If a licence has been granted for three years by a local authority that feels that the risk is acceptably low and it subsequently appears not to be so low, perhaps because an inspection has taken place, what power does the local authority have to curtail that licence?

Ben Bradshaw: At any stage in the process, the local authority would have a power to carry out an on-the-spot inspection. If it were not satisfied with what was going on—the premises may have changed hands or have deteriorated for some other reason—it has the power to take away or alter the licence.
We are keen to avoid a rigid approach in which every premises has to be inspected every year. There will be many more premises that local authorities or the state veterinary service will have to inspect under the Bill. We would prefer to have quality inspections rather than quantity inspections. For example, we would like professional veterinary surgeons to be used more often in inspections. Given the resource implications of that, it may make more sense to allow local authorities to make a judgment based on their experience. They will know, for example, that one place does not need to be looked at every year but that another needs to have a good inspection with a vet so that it can satisfy itself that the welfare needs are being met.

Norman Baker: Again, I think the Minister and I are not too far apart. We both understand why we have taken the view we have. I understand the need for flexibility; there are benefits.
I also concur that an inspection if there is one should be, as the Minister describes, a quality one rather than simply a quantity one. I am concerned, however, that conditions can deteriorate in three years. Therefore local authorities might be blindsided, as it were, about  something that is happening and that will not be detected for a while. Animals will suffer as a consequence. That has to be weighed in the balance.
Equally, even if a local authority detects a problem within the three years, taking a licence away may not be quite as simple as the Minister describes. Presumably there is a right of appeal. The process will be expensive. The local authority may well then take the course of least resistance and just let the licence run out. I am not altogether convinced that that is the correct approach, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Clause 12 - Codes of practice

Bill Wiggin: I beg to move amendment No. 79, in clause 12, page 7, line 4, leave out subsection (3).
This is probably one of the most brief but important amendments that I have tabled, because it seeks to ferret out from the Government exactly what they mean by the codes of conduct. The amendment would seek to delete clause 12(3) so that a failure to comply with a provision of code of practice shall not lead to proceedings taking place against that person.
When we consider that the codes of practice to be made under the Bill, as stipulated in clause 12(1), will inevitably relate to the promotion of welfare and the prevention of harm, surely a failure to comply with the code of practice would automatically mean a failure to comply with the Bill and its future regulatory framework. When we consider what is stated in subsection (4), it becomes clear that subsection (3) is even less necessary and could be removed from the Bill. I am looking for the Government to lay out clearly what happens if one breaks the code of conduct.

Norman Baker: I echo those concerns and remind the Committee that I raised a similar concern from a different angle on clause 4, which deals with unnecessary suffering. The Committee may remember that, in clause 4, a great deal of weight is put on the codes of practice to provide evidence for unnecessary suffering. Therefore, as the hon. Member for Leominster (Bill Wiggin) quite rightly says, what is important is that the codes of practice have some teeth in them; otherwise there could be a serious loophole in the Bill.

Ben Bradshaw: The hon. Member for Leominster omitted some crucial words in his reading of the subsection that he seeks to delete.

Bill Wiggin: Sorry.

Ben Bradshaw: I forgive him.
Subsection (3) says that a
“code of practice issued under this section shall not of itself render him liable to proceedings of any kind.”
Those words are crucial.
I will explain the legal status of codes of conduct. It is not possible for a code to impose legal obligations that are capable of attracting a criminal sanction. That can be done only in primary or secondary legislation, such as the Bill and regulations made under it. In the interests of legal certainty, we need to make this plain in the drafting, so that people know to whom the codes apply.
Subsections (3) and (4) define the legal status of codes of practice. Subsection (3), which closely mirrors section 3(4) of the Agriculture (Miscellaneous Provisions) Act 1968, ensures that failure to comply with the code does not in itself make someone liable to proceedings. In other words, failure to follow the code is not in itself an offence. However, subsection (4) ensures that such a failure may be relied on in the courts as tending to establish liability in proceedings for any offence under the Bill or its welfare and licensing regulations.
To remove subsection (3) would render the status of codes of practice unclear. That would not be acceptable, as the person would be unaware of the consequences of their actions, including whether they were criminally liable. I hope that helps to clarify the issue and that the hon. Gentleman will withdraw his amendment.

Bill Wiggin: If I understood the Minister correctly, this part of the Bill seeks to take the codes of practice and says that they are not laws themselves, but that if someone breaks them, they will be prosecuted. I hope I have understood that correctly. I looked at the draft cat code that we were shown, and it said that the cat must always have access to drinking water, which is perfectly reasonable. But there is an aspect that is not clear: either someone gets prosecuted or they do not—the Minister shakes his head.

Ben Bradshaw: I thought that I had made things clear. The meaning is exactly the opposite of what the hon. Gentleman suggests. A breach of the code of conduct will not necessarily mean a prosecution, but a court would be able to use it as evidence for a prosecution of a welfare or cruelty offence.

Bill Wiggin: I am grateful; I think that I have sufficiently clarified what the Minister is trying to do, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.

Clause 13 - Making and approval of codes of practice: England

Bill Wiggin: I beg to move amendment No. 81, in clause 13, page 7, line 15, at end insert—
‘()seek to consult publicly with all interested parties and make available the details of the evidence given,’.

Roger Gale: With this it will be convenient to discuss the following amendments: No. 63, in clause 13, page 7, line 17, leave out
‘about the draft as he thinks fit’
and insert
‘appearing to the authority to represent any interests concerned as the authority considers appropriate’.
No. 62, in clause 13, page 7, line 17, leave out ‘as he thinks fit’ and insert
‘appearing to him to represent any interests concerned and make available the details of the evidence provided’.
No. 64, in clause 13, page 7, line 19, leave out subsections (2) to (6) and insert—
‘(2)If following the consultation process under subsection (1) the Secretary of State decides to proceed with a draft (either in its original form or with such modifications as he thinks fit), he shall make a draft instrument containing the code (or revised code) for approval by resolution of each House of Parliament.’.
No. 65, in clause 13, page 7, line 33, leave out subsection (8).

Bill Wiggin: The amendments will guarantee that all interested parties will be able to be consulted in a transparent manner prior to the drafting of the codes of practice. All that we are trying to do is ensure that the Bill provides for proper clarity and transparency.
Amendment No. 63 would make the consultation on the drafting of the codes of conduct less Minister-dependent. For example, the European Circus Association has expressed concern that the consultation process as drafted is too dependent on the authority’s view about whom it is fit to consult. Amendment No. 62 is intended to ensure that once any draft codes are produced, the Secretary of State will be statutorily obliged to guarantee to all interested parties an opportunity to make representations. I am sure that the Government would want that to happen anyway, but we want to ensure that it is specified in the Bill.
Amendments Nos. 64 and 65 are slightly different. These amendments will improve the transparency of the code-making procedure and enable Parliament formally to approve or reject the draft codes of practice. As I understand the position at the moment, to reject a code of conduct it would be necessary to pray against the statutory instrument placed before the House by the Government. I should like to change that to the affirmative procedure. Then every time the Government brought forth a code of conduct they would announce, “This is what we propose: will Parliament please approve it?” That would be far more transparent and open, and a more sensible way of proceeding. I am sure that it would be possible for the Minister to do that, but the amendments would ensure that he had to do it.

Ben Bradshaw: The hon. Gentleman may overestimate my powers of persuasion with the Whips and parliamentary managers if he thinks that I could persuade them to find time to rush the codes through using the procedure that he recommends. That takes us back to a point that was made a little earlier. It may be helpful to the Committee if I say a few words about how we plan to prepare and introduce codes of conduct; that may put into context the debates that we are to have in a moment.
For each of the codes that we intend to produce, we shall first convene a working group of experts to scope the work and ensure collaboration in producing a first draft. As is our usual practice, we shall in all cases try to convene a working group representing a wide range of interests. That happened with the draft cat code, which I have already made available to the Committee. Once the Department is happy with the draft, we shall put it out to consultation, and in most cases we would expect that to be a full public consultation.
All Departments conducting consultations are required to follow the Government’s code of practice on consultation. Criterion 4 of the code requires Departments to give
“feedback regarding the responses received and how the consultation process influenced the policy.”
The Department for Environment, Food and Rural Affairs, as hon. Members will know, makes all responses to consultations publicly available on request, unless the respondent has asked that a response be kept confidential. Information provided by the public in response to consultations must be dealt with in accordance with the access to information regimes. Those are primarily the Freedom of Information Act 2000, the Data Protection Act 1998 and the Environmental Information Regulations 2004. Where respondents request that information given in response to consultation should be kept confidential, that is possible only if it is consistent with the freedom of information obligations. On the other hand, there may be rare occasions where it is appropriate for responses not to be made public in part or in total.
Amendment No. 81 would require my Department to undertake a full public consultation before a first draft of a code of practice was produced. That would be an unnecessarily burdensome requirement, likely to slow down the production of codes—of which we have to produce quite a lot, as hon. Members have urged us to do. We do not think that such a slowing down in the process would be in the interests of animal owners or keepers. As I have explained, the access to information regime and the codes of practice on consultations already prescribe, in detail, the rights of consultees and members of the public in respect of evidence submitted to public consultations. We believe that it would be inappropriate to try to reproduce the complex provisions and safeguards of that regime with a summary requirement of the type suggested here.
The use of the word “authority” in amendment No. 63 could include the National Assembly for Wales. I am not sure whether that is the intent of the hon. Gentleman, but I doubt it given his earlier views on giving the Assembly powers under the Bill.
On amendments Nos. 64 and 65, clause 13 specifies the procedure that will be followed to make or revise a code of practice to apply in England. That is obviously connected to clause 12, on codes on practice, and clause 15, on the revocation of codes, while clause 14 specifies the procedure to be followed in Wales. When the Secretary of State proposes to issue or revise a code of practice, he or she will issue a draft and, as I  mentioned earlier, there will then be a consultation. The draft would be laid before Parliament under the negative resolution procedure. Unless Parliament resolves not to approve the draft, the Secretary of State will then bring the code into force by order.

Norman Baker: As a matter of record, can the Minister indicate how many codes of practice he anticipates there will be in total?

Ben Bradshaw: I am afraid that I cannot give the hon. Gentleman that figure off the top of my head, but we are talking of a considerable number. I think that Sweden, which is further down the road than us in these matters, has codes of conduct on animal species running into scores. I may be able to give the hon. Gentleman more accurate information if we have a stand part debate, but I can say that the codes would be many and time-consuming. I acknowledge the point made previously by my hon. Friend the Member for Sheffield, Hillsborough (Ms Smith); perhaps not all of the codes need to be as long and detailed as the cat code. We wanted that kind of belt-and-braces code as a first example.
It is a time-consuming process, but that goes back to the point about being prescriptive. There may well be controversial codes which people want or against which they want to pray. However, our hope is that the vast majority of the codes would, having gone through the consultation process, not be controversial, so we do not want to prescribe that they always have to be agreed by affirmative procedure. That is why I hope that the hon. Gentleman will withdraw his amendment.

Philip Hollobone: To speed up the process of compiling the codes, will the Minister be drawing on the experience of countries such as Sweden which are already well down the road?

Ben Bradshaw: Yes, indeed; I am always keen to draw on good international practice, not only in the Bill, but throughout Government. We do not do enough of that. I am not in favour of reinventing the wheel, and we have studied carefully the experience of Sweden and other countries who have already taken these steps. That should help us to draw up the codes, in conversation with animal welfare organisations and other interested parties.

James Paice: I am interested in the Minister’s remarks, Mr. Gale, but I want to return to the issue of negative and affirmative resolutions. Naturally, I understand the Minister’s desire for these codes generally to be non-controversial and agreed by all relevant and interested parties. Indeed, for a number of the activities that we are discussing, I hope that we will largely be adopting codes that already exist under self-regulatory processes.
Is the Minister aware, however, of concern among Conservative Members, which I believe is more widely shared, about the amount of secondary legislation in the Bill? We support the idea of flexible legislation and understand that, nearly 100 years since the last such Act, there is a need for a whole raft of primary  legislation. In order to update flexibly as science advances and public opinion changes, it is necessary to have some secondary legislation, but we are concerned that it has gone too far.
I ask the Minister to think again about that issue. Although I hope that most of the secondary legislation will not be controversial, we all know that a Statutory Instrument Committee can go through even controversial matters in a very short time. I know that the Minister of the day would have to come and make a short statement, but it is not a big deal. However, the affirmative procedure gives some parliamentary control over the secondary legislation: it makes people think more carefully.
As somebody with your experience will know, Mr. Gale, the theoreticians will say that the negative resolution still requires everybody to look at what has been tabled and to decide whether to pray against it, although a prayer does not always end up in Committee. However, I believe that the principle of Parliament having to approve a code is right. Ideally, I would prefer to have an opportunity to amend it. It is a fault in our procedures that we cannot amend statutory instruments, but that is a separate issue which it is not for the Committee to resolve. However, at least an affirmative resolution gives an extra stamp of parliamentary control and would not create the problems of inflexibility that the Minister seems to imply.
Clearly we shall not force a Division on the amendment, but I wanted to stress that it is a serious concern. The Bill gives the Minister and his successors a huge amount of power. In many ways we do not regret that because of the flexibility that exists, but some element of democratic control is necessary, and I ask him to think again about the affirmative procedure versus the negative.

Ben Bradshaw: I appreciate that there is a balance to be struck between parliamentary scrutiny and the speed of getting codes through, as we have discussed before in the Committee. Regulations would be subject to the affirmative procedure. Here we are simply talking about codes, which have a slightly different legal status. Even with the best will in the world on my part or that of any future Minister, there are also constraints on parliamentary time for consideration of statutory instruments. If we were to adopt a prescriptive rule that every code had to be subject to the affirmative resolution, that would inevitably slow the process up, unnecessarily in this instance.

Justine Greening: There is already the precedent of the Agriculture (Miscellaneous Provisions) Act 1968, in which codes of practice are subject to an affirmative resolution. Does the Minister agree that that approach would merely align the Bill with that earlier Act?

Ben Bradshaw: No, because the intention is to change the way in which we deal with agricultural issues. We intend to make those codes subject to the negative procedure as well.

Norman Baker: I understand why we have argued for the affirmative resolution, which I support as a concept in principle, but I also understand the Minister’s objections. I wonder whether, when a code is about to be produced or subject to a negative resolution, a halfway house might not be for the Minister formally to send a copy of the code to the relevant spokesman of the other parties with a note saying that it was now here. It would then be flagged up and there would be no question of its being missed. Would that be a better way of doing it? In those circumstances Opposition Members would be fully aware of the statutory instrument and would have the opportunity to pray against it if necessary. Neither I nor the Minister would want a code to go through without its having been noticed. We know how much stuff goes past our desks every day. That might be a way to meet legitimate requirements.

Ben Bradshaw: Speaking for myself, I should be happy to do that, but I would not necessarily want to bind any successors. It would also be within the powers and scope of the Environment, Food and Rural Affairs Committee, for example, to spend time scrutinising the codes if it wanted to; even Back Benchers, if they felt particularly strongly about a certain code, could call a Minister to account in an Adjournment debate, or something like that. Therefore, hon. Members should not get too hung up on whether the codes require the negative or the affirmative procedure. There will be a great deal of interest and discussion, as there has been in the Committee, particularly on some of the more contentious ones.

Bill Wiggin: First, the Minister made some important points about the fact that the whole Committee wants to see these codes of practice brought in as quickly as possible, and on that I agree with him. Then he laid out the procedure for consulting the public fully and transparently. He then had a quick go at me about my Welsh roots. For what it is worth, the House will this afternoon will be taking the Government of Wales Bill through its Committee stage.
Hon. Members will be interested to know that, while the Select Committee was engaged in its pre-legislative scrutiny of the Bill, the consultation was still open. The Government had not consulted fully before sending the draft Bill to the Select Committee; indeed, the consultation period closed on the day the Select Committee reported. It is not fair to say that the Government always get their consultation periods exactly right; nor is it good enough to say that they will consult fully, openly and transparently, because their track record is not perfect.
None the less, I understand that the Minister wants to consult as widely as possible. In one of their tidying-up exercises, the Government have probably lopped off the important bit about transparency. I can understand why they did so, although I am surprised that they did not want to embrace the openness and transparency that they always suggest.
We have talked a little about having a halfway house between the affirmative and negative procedures for introducing the codes of conduct. The problem with codes of conduct—we have already discussed their legal standing—is that Parliament will not have the option to amend them at any stage. As a result, we will be passing a Bill that gives a huge range of opportunities for prosecution. In allowing that to go through, we are denying ourselves, as elected Members, any option for amending the Bill. That is a great shame.
I take the Minister’s point about affirmative and negative resolutions, but hon. Members will not have the opportunity to deal with the codes in a Committee considering delegated legislation. The Minister must be clearly aware that he is asking us to commit an act of faith. To approve the framework for making codes of conduct without having the option to intervene as elected Members is not altogether acceptable. I made that clear on Second Reading. I make it clear again that I am not content.

Norman Baker: I agree with the thrust of what the hon. Gentleman says, but neither the affirmative nor the negative procedure will solve the problem. The basic problem, which I have raised on the Floor of the House, is that statutory instruments are not amendable. It is Parliament that needs to get around that problem.

Bill Wiggin: The hon. Gentleman is right. It is not acceptable. Not even a statutory instrument would be acceptable.
The Minister suggests a middle way. I suggest that we need to be involved at a far earlier stage than after the consultation. Transparency and openness are important, as is the fact that the Secretary of State should not be able to choose who to consult. Those who have been missed out of the consultation may say, “Oi, you’ve forgotten this one crucial fact”, but at that point the process will be closed. It is a weak part of the Bill, and we shall need to think carefully about it before Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.

Clauses 14 and 15 ordered to stand part of the Bill.

Clause 16 - Powers in relation to animals in distress

Bill Wiggin: I beg to move amendment No. 173, in clause 16, page 8, line 28, leave out subsection (4).

Roger Gale: With this it will be convenient to discuss amendment No. 67, in clause 16, page 9, line 12, at end insert—
‘(8A)When using any of the powers granted under this section, constables, inspectors and veterinary surgeons shall take such biosecurity measures as are necessary to protect the environment from disease.’.

Bill Wiggin: Again, this is a probing amendment. It seeks to clarify the powers of inspectors and constables to end the life of animals in distress. There seems to be a contradiction: subsection (2) acknowledges that constables and inspectors are not qualified to make crucial decisions about the life or death of animals, but subsection (4) permits them to do so. I appreciate that in some circumstances it may be more humane to put the animal down on the spot.
In most circumstances, as stated in subsection (3)(a), only a veterinary surgeon should be able to make a life or death decision. An animal may need urgently to be put down if it has been run over by a car. However, as the Bill is not completely clear on the subject, the contradiction to which I alluded remains, and I would be grateful if the Minister clarified matters. It is important, because one cannot, for example, fire a gun near the edge of a road, so the quickest and kindest way of putting down a deer that has been hit by a car is illegal.
Amendment No. 67 states:
“When using any of the powers granted under this section, constables, inspectors and veterinary surgeons shall take such biosecurity measures as are necessary to protect the environment from disease.”
That would be ridiculous in the example that I just gave, but I have noticed that the state veterinary service takes great trouble with biosecurity if there is a suspected outbreak of some notifiable disease. People will remember that during the foot and mouth outbreak those who were trying to slaughter sheep frightened them to such an extent that they jumped out of the field and infected the next farm, thus widening the need to cull contiguously; indeed, that happened even in my constituency.
We therefore need to ensure that constables, inspectors and veterinary surgeons abide by the legal and biosecurity precautions, which I believe may already be on the statute book and which are obviously extremely important in such situations, when they deal with these sorts of problems.

David Drew: I have very little to add to what the hon. Gentleman says, except to urge some caution in the wording of subsection (4) because it gives an awful lot of power to someone who wants, humanely, one hopes, to destroy an animal. It is implied that a veterinary surgeon will be called in, but I want it to be clear that a veterinary surgeon will be called to attend even after an animal has been humanely put down, just to prove that destroying it was justifiable.

James Paice: I want to pick up the point that my hon. Friend the Member for Leominster touched on tangentially. I had hoped to table an amendment, which would in fact have fitted into the group of probing amendments tabled by my hon. Friend, relating to road traffic accidents, which, unfortunately quite frequently nowadays, involve deer.
My understanding of the Bill and conversations with the Minister lead me to believe that a deer that has been injured and is lying on the verge comes within the  ambit of the Bill because there is clearly an issue of how it is cared for and how its condition is resolved. If the Minister tells me that such a case would be outside the ambit of the Bill, that would partly resolve the matter, but my understanding is that at that stage it would be protected by the Bill, just as an animal caught in a trap is protected by the Bill. That can, of course, also apply to dogs or indeed to any animal, even, sadly, to horses on occasion these days.
These accidents can be quite horrendous. An animal can be very seriously wounded. I do not want to be gory, but bones can protrude. That sort of thing is quite clearly beyond veterinary help and recovery. A wild animal such as a deer would almost certainly never recover because of the trauma. I understand the purpose of subsection (4) and the need to destroy the animal humanely and as quickly as possible to put it out of its suffering.
The point on which my hon. Friend touched is very important, because inevitably after a road traffic accident, the animal is lying on the road or, more often, on the verge. It is an offence to use a firearm within, I believe, 30 m—

Bill Wiggin: Within 50 m.

James Paice: Within 50 m of the road. It is certainly not possible to use a firearm on the verge. The Minister is listening, which I appreciate, and he may want to go away and think about this. There have already been many cases in which people who are licensed to have a rifle have been called to a scene, but have said that they will not shoot the deer, not because it does not need to be shot but because they cannot fire their rifle in that situation without contravening firearms legislation. The animal has to suffer for much longer before someone comes along with an humane killer, which is the only thing that one can use in such a location.
There is an issue about whether the officer who sees that the animal is clearly in immense distress and needs to be put out of its suffering as quickly as possible, should be able to authorise someone who lawfully owns a weapon that would do the job to use it then and there. There is also an issue about the type of weapon that can be used. There are firearms that are not approved by law for the killing of deer, such as a shotgun, which is clearly not appropriate in the field. But a shotgun at point-blank range is an extremely lethal weapon and it could be used perfectly satisfactorily to put an animal out of its suffering.
Perhaps the Minister will want to talk to his colleagues in the Home Office about this. The country and sporting press report a number of occasions on which licensed stalkers, gamekeepers and so on were on hand to dispatch an injured animal, but would not do it because they feared that they would be breaking the law and might lose their firearms certificate. One may argue that that would be an unreasonable act by a chief constable, but it happens and people are right to be concerned. There is the issue of the humane treatment of a seriously injured animal, and I hope that the Minister will take it on board.

Philip Hollobone: Can the Minister clarify the law as it stands at the moment, and as it may be changed by the Bill, with regard to road kill? For many of our constituents these will be some of the most distressing circumstances in which they are directly faced with an issue of animal welfare. Who is responsible for the welfare of an animal that is hit by a car and is lying injured by the side of the road? Does that responsibility change depending on what kind of animal it is? Does it have to be a protected animal as defined by clause 2? Is there a distinction between domesticated and feral cats? Could the Minister also clarify the duty of members of the public to report an animal injured in a road accident? I am sure that this is an area of huge confusion for the great British public. This may be an appropriate opportunity to explain the law on the record.

Ben Bradshaw: I shall first address the points made by the hon. Member for South-East Cambridgeshire (Mr. Paice) about whether someone could be criminalised for humanely dispatching a deer that had been hit by a car. My oral advice from my officials is that that person could not be prosecuted if they had dispatched the animal, regardless of what the law says about where they are allowed to use a weapon. I will talk to my Home Office colleagues about this. The hon. Gentleman made a good point. If an animal is clearly suffering and someone, such as a farmer, has the means to dispatch it humanely, it would seem to me and to most members of the Committee unreasonable that he could be prosecuted for carrying out a humane act. My advice is that he could not be prosecuted, but I will seek clarification in writing on the hon. Gentleman’s behalf.

Bill Wiggin: Subsection (8) states:
“A person acting under subsection (7)(b)(i), or under an arrangement under that provision, may make use of any equipment on the premises.”
If the equipment on the premises was a gun, even if it was close to the road, the Minister might have a get-out there. It might be helpful if that was clarified.

James Paice: I am grateful to the Minister. I agree that common sense would dictate that what he said is right, but the issue is not just prosecutions; it is also whether the person could lose their firearms certificate. A person does not have to have been prosecuted for a chief constable to decide to remove their firearms certificate. If the chief constable has reason to believe that the gun has been used improperly, or if a caution has been given, the certificate can still be lost. Firearms certificates are for many people who live in the country an instrument of livelihood, and they are understandably extremely concerned about what is proposed. I am grateful that the Minister is to investigate further.

Ben Bradshaw: On the point that was made by the hon. Member for Kettering, I hope that he will forgive me, but I do not, off the top of my head, recall the rules on responsibility for people who knock down different sorts of animals. He is right in thinking that they vary  depending on whether they are domesticated pets or wild animals. I shall obtain clarification for him before the end of today, if that is acceptable to him.

Justine Greening: Will the Minister also clarify the role of local authorities? Obviously, London is a very busy place, and if an animal were knocked over at the side of a red route, for example, an RSPCA officer might be required to come and collect it. I understand that at present the RSPCA must contribute to the congestion charge. Would the Mayor have some responsibility for the removal of the animal?

Ben Bradshaw: That sounds like a rather more complex question, to which I may not be able to obtain an answer by the end of the day, but I shall endeavour to get one before the Committee’s proceedings finish at, we hope, the end of the week.
On the general issue, I hope that I can reassure my hon. Friend the Member for Stroud (Mr. Drew) that we are talking about an exceptional case in which a vet has been called. The clause makes it clear that in the vast majority of cases an animal may be dispatched only by a vet, or if there is a vet’s certificate. However, several hon. Members have drawn attention to cases such as a road traffic accident after which an animal is clearly suffering, but the vet is unable to arrive in time and the person concerned has the necessary means and, indeed, the courage to do the deed. Most people, unless they were brought up in the country, like me, find the idea of putting an animal down humanely quite difficult. We are trying to avoid making it a criminal offence to act in that way because a vet could not get there in time. On that basis I ask the hon. Member for Leominster not to press his amendment.

Bill Wiggin: Amendment No. 173 is intended to identify the circumstances in which a vet would not be required. We can clearly understand those that relate to a road accident. Obviously one would not need to wait for a vet if an animal was thrashing around in agony. However, there are other occasions on which a vet might or might not be required. I need to tease out more information from the Government.
We have all read about the houses where mad people collect huge numbers of animals and do not look after them properly, so that a certain number must then be put to sleep. We understand about that, but in those situations there is often time for a vet to inspect them properly. It is not clear from the clause how the two types of case will differ from each other. We can make up illustrative examples in Committee, but at some stage someone will turn up and say, “Actually, they should have called a vet. The animal would not have been in any more agony if it had waited,” and that will have to be tested in law. If we could get something from the Minister now that might not be necessary.

Ben Bradshaw: The case that the hon. Gentleman has outlined, involving someone who for whatever reason has a house full of animals that are suffering, would clearly require, under the Bill, the attendance of a vet to certify the putting down of the animals. Perhaps one could imagine, although it might be difficult, a case in which neglect meant it was not  possible to wait 10 or 20 minutes for a vet to arrive. The case that I should consider relevant, and which Committee members have also considered relevant, is the one in which an animal has been hit by a car and is suffering badly in the middle of the countryside somewhere. It might not be possible for a vet to arrive for an hour or so. It is not in the spirit of the Bill, and nor should it be in the letter of the law, to insist that that animal should suffer terribly for another hour.

Bill Wiggin: I am grateful to the Minister. I think that if the owner of the animal is present and says, “Don’t destroy my animal. Don’t kill this animal; please get a vet first,” it is clear that the inspector should proceed with a vet, but if that does not happen and the animal is obviously suffering, those concerned should proceed in the way set out in the Bill. Now that I have put that clearly, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 135, in clause 16, page 9, line 2, at end insert—
‘()The power conferred by subsection (5) includes power to take into possession dependent offspring of an animal taken into possession under that subsection.’. —Mr. Bradshaw.]

Roger Gale: With this it will be convenient to discuss the following: Government amendment No. 136.
Amendment No. 61, in clause 29, page 14, line 19, after ‘offspring’, insert
‘or any offspring it is carrying in utero’.

Bill Wiggin: I think that amendment No. 135 is where the Government include baby animals, which is a tremendous improvement and something we asked for earlier in the Bill’s consideration. In fact, I took an intervention from my hon. Friend the Member for North Wiltshire (Mr. Gray), or someone did, in that debate. We welcome the amendment, ensuring that baby or dependent animals are also taken into consideration. That is positive. I am grateful to the Government for being so flexible and for listening.

Amendment agreed to.

Bill Wiggin: I beg to move amendment No. 174, in clause 16, page 9, line 12, at end insert—
‘(8A)For the purposes of subsection (7)(c), the appropriate national authority may by regulations make provision for the method by which an animal may be marked for identification purposes.’.
The amendment is about when an animal is in distress and, for the purposes of practicality, it may be necessary to identify it at a later date. Marking would therefore be a sensible course of action to take.
With regard to the clipping of cats’ ears, I understand that if someone owned a number of cats and a small number of them appeared to be mistreated, marking them for the purpose of identification may be necessary. If the mistreated cats were marked, locating them in the future would be easier. The amendment enables the Government to make appropriate  regulations for that to happen. The amendment is not particularly complicated so I hope that the Government will accept it.

David Drew: I am intrigued to know who has the right to mark an animal, which may be done for justifiable reasons. With that in mind, what level of marking are we talking about? Are we talking about microchipping or branding an animal? Are we talking about marking by cutting the ear of an animal? What is the purpose of marking and who is able to do it? In a sense, marking indicates a change of ownership, and there may be reasons why that change is necessary. I want clarification from my hon. Friend the Minister why, how and who can do this.

Ben Bradshaw: The amendment would allow the appropriate national authority to make regulations specifying how an animal may be marked if it has been taken into possession because it was suffering or likely to suffer. The Government believe that the amendment is not necessary. It would be too burdensome at this stage to lay down detailed provisions about the best way to mark animals taken into possession.
Marking an animal taken into possession will not always be necessary. For example, a single dog or cat might identified adequately simply by their wearing a collar. That would not constitute marking for the purposes of clause 16(7)(c). If cattle were taken into possession, they should already be wearing ear tags and, therefore, would already be marked. However, if, for example, a herd of pigs were taken into possession, there might be a need to mark each animal.
In a majority of such cases, the constable or inspector would be able to draw on his or her experience and knowledge of the best way to mark an animal. If necessary, there are already suitable sources of information and advice available, such as the state veterinary service or the RSPCA. However, if experience after the Bill comes into force shows that further guidance is necessary, I am confident that power to issue such guidance is already given by the Bill. For example, clause 12 allows for the appropriate national authority to issue a code of practice
“for the purpose of providing practical guidance in respect of any provision made by or under this Act.”
Further, clause 10 allows the appropriate national authority to make
“regulations ... for the purpose of promoting the welfare of animals for which a person is responsible”.
Therefore, the Bill already allows for regulations of a type that this amendment envisages.
I hope the hon. Members will also have been reassured by the debates that we had on clause 5. Although not all methods of marking an animal would constitute a mutilation, those that are mutilations and that are unacceptable will be prohibited by clause 5. On the basis of that, I urge the hon. Member for Leominster to withdraw the amendment.

Bill Wiggin: That is a great deal clearer, and I am grateful to the Minister. As I have no reason to press it, I beg to seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Bill Wiggin: I beg to move amendment No. 68, in clause 16, page 9, line 15, at end insert—
‘(9A)A person acting under subsections (1) and (3) to (9) must, if appropriate, take all reasonable steps to notify the owner of, or person responsible for, any animal of their actions.’.

Roger Gale: With this it will be convenient to discuss the following amendments: No. 69, in clause 16, page 9, line 18, after ‘incurs’, insert ‘reasonable’.
No. 71, in clause 18, page 10, line 16, leave out
‘it is not reasonably practicable’
and insert
‘reasonable endeavours have been made’.
No. 53, in clause 18, page 10, line 25, after ‘reimburse’, insert ‘reasonable’.

Bill Wiggin: Amendment No. 68 would ensure that efforts are made to inform an animal’s owner if any powers under the clause are being used. At present, the clause does not distinguish between animals that are in distress because of the actions of their owner and animals that are in distress accidentally. A person who is responsible for causing an animal distress must be dealt with accordingly and the animal must be treated. However, if an animal has found itself suffering through an accident—for instance, a cat getting caught on a fence or being run over—it is only right and proper that the owner is contacted if possible and has a say in the pet’s treatment. If an owner has not committed an offence, they should determine the treatment that their pet receives, especially if it involves putting the animal down. The amendment would therefore safeguard the responsible owner’s right to make responsible decisions about the care of their animals.
Amendment No. 69 would ensure that excessive financial charges are not placed on someone whose animal has been treated or destroyed when no offence has taken place. The clause enables inspectors and constables to take measures to alleviate an animal’s suffering if it is found to be in distress and financially to charge the owner accordingly, regardless of whether an offence has taken place. When an offence has taken place, the offender must be expected to pay. However, it is possible that an owner may not be aware that their animal is in distress.
For instance, if an owner lets their cat roam, they cannot be expected to supervise it at all times. Nevertheless, through its own misadventure, that cat could sustain an injury and require treatment. In those circumstances, when the owner is innocent of any offence, under subsection (11) he could still be made to feel like a criminal. Therefore, the amendment would safeguard an owner’s interests by ensuring that over-zealous inspectors will not receive undue awards when there is no award to claim.
Amendment No. 71 would place a duty on the courts to ensure that an animal owner’s rights are not infringed. Under clause 18, an owner who acts responsibly towards their animal may still have it taken away from their care without their knowing—for instance, if they are away from home and another person who is supposed to be responsible for the animal has not been responsible. It is right that, in  these and similar circumstances, the animal’s well-being is given priority. Nevertheless, those who have taken over the animal’s care should still take positive steps to find the animal’s owner. I am concerned that the words that
“it is not reasonably practicable”
contains an inherent negativity whereby efforts to contact the owner may not even be made. However, the amendment would ensure that at least efforts are made to contact the owner and include them in a decision about the animal’s future.
As with amendment No. 69, amendment No. 53 is designed to ensure that excessive financial charges are not laid against someone whose animal has been treated or destroyed under clause 18, especially when that person is not guilty of an offence. The Bill rightly gives inspectors and constables the power to take appropriate measures to alleviate an animal’s suffering, and it is appropriate that those costs are recoverable. Nevertheless, some people have expressed concern that there may be occasions when over-zealous officers or persons give that animal expensive treatment, which the owner, who has not committed an offence, may not be able to afford to pay. Furthermore, the cost of such treatment may be more than is necessary. The amendment would ensure that the costs are reasonable and proportionate to the treatment and it would prevent excessive charging. I can think of an example where a cat is very old. To take it through an advanced operation may be the most inappropriate treatment, but if one has not spoken to the owner, one would not necessarily know that. That is what we seek to safeguard.

Ben Bradshaw: If the hon. Gentleman is agreeable, I would like to give the issue raised in amendment No. 68 further consideration. We are not wholly convinced that the amendment as drafted would work, but if he would agree to withdraw it, I will contact him before Report with a considered view of the Government’s position.
I turn to amendments Nos. 69 and 53 that aim at ensuring that the court will order only the reimbursement of reasonable expenses incurred while a person carries out its orders. That point was addressed in the Government response to the EFRA Select Committee, so I shall deal with it briefly. A court is a public body and, as such, is obliged to act reasonably. We believe there is no need to include a provision in the Bill to stress that again.
On amendment No. 71, regarding the clarification that must be met before a court can order disposal of an animal under clause 18 without hearing from the owner, the proposal is a matter of drafting preference. The essential point of clause 18(3) is that, unless there is good reason to do otherwise, an animal’s owner must be heard before its fate is determined. The current drafting uses a “reasonably practicable” test that is well established in law and, we believe, more than adequate to meet the needs of the situation in question. If it is not “reasonably practicable” to communicate with the owner, there is little point in obliging a prosecutor to endeavour to do so. The amendment, by requiring the applicant to show that he  had indeed made reasonable endeavours to contact the owner, may result in unreasonable expense and delay during such endeavours. We are not convinced of the need to employ a different test in that case. On that basis—and bearing in mind what I said about amendment No. 68—I urge the hon. Gentleman to withdraw his amendment.

Bill Wiggin: We have already seen the Government bring forward amendments that were perhaps better drafted than my amendment No. 61. I take seriously the point made by the Minister about amendment No. 68, and am more than happy to withdraw it. As a Committee, we have been working together positively for the benefit of animal welfare.
I also take on board the important points that the Minister made about reasonableness. When a judge is about to award a huge amount of money—perhaps erroneously given that the owner has committed no offence—he will look back on the Minister’s words and recognise that he must be reasonable. There was concern about how clerks to the magistrates courts would interpret, say, the size of fines and other parts of the Bill. They will now know that the Minister expects them to be reasonable, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Clause 16, as amended, ordered to stand part of the Bill.

Clause 17 - Power of entry for section 16 purposes

Anne Snelgrove: I beg to move amendment No. 153, in clause 17, page 9, line 28, after ‘entry’, insert ‘without warrant’.

Roger Gale: With this it will be convenient to discuss the following amendments: No. 154, in clause 17, page 9, line 29, at end insert
‘unless the inspector or constable reasonably believes that the animal is in serious and immediate danger from which it should be removed before a warrant under subsection (4) can be obtained and executed.’.
No. 155, in clause 19, page 11, line 1, after ‘entry’, insert ‘without a warrant’.
No. 156, in clause 24, page 12, line 30, after ‘entry’, insert ‘without a warrant’.

Anne Snelgrove: Clause 17 is an important one, and mine are probing amendments. The clause gives power to an inspector or constable to enter premises to deal with an animal if it is believed to be suffering, or likely to suffer if remedial action is not taken. Subsection (2) provides that the power of entry does not extend to private dwellings, or any part of a building that is a private dwelling. However, the clause goes on to deal with those premises that are not private dwellings, saying that inspectors or constables can obtain warrants to enter premises unless there is an expectation that waiting for a warrant may prolong an animal’s suffering or that immediate entry could mean that suffering would be prevented.
As I said earlier, however, subsection (2) removes private dwellings from that and I seek some clarification from the Minister. My amendments seek to include private dwellings within the clause and to put them on the same footing as public or office premises, for example. Amendment No. 154 says that one cannot enter a private dwelling without a warrant
“unless the inspector or constable reasonably believes that the animal is in serious and immediate danger”.
I hope that the Minister will note that. The corresponding amendments to clauses 19 and 24 would tidy up the provision and make reference to warrants.

Norman Baker: It might help if the Minister were to dwell for a second on subsection (2) and spell out what he means by “private dwelling”. I take it to be the entire curtilage of a premises, but a distinction might usefully be drawn between that which is indoors, which is private in a more definitive way than that which is outside, which may still be legally private. What happens if an animal is seen in that part of a private property that is visible; for instance, in the yard or a field? What is the legal situation in that respect ?

Bill Wiggin: With your permission, Mr. Gale, I wish to comment on amendment No. 70, which is relevant to this debate. I was going to raise a point of order and ask whether you would consider allowing that, but I may wish to press the amendment to a Division. May I speak to it now?

Roger Gale: I will regroup amendment No. 70 with the amendments under discussion at the moment. The hon. Gentleman has indicated that he may wish to vote on it separately, and I understand that.
It will therefore be convenient to discuss amendment No. 70, in clause 17, page 9, line 29, at end insert—
‘(2A)For the purposes of this Act, “private dwelling” is to mean an enclosed building, or part of a building, used exclusively for residential purposes.’.

Bill Wiggin: I am most grateful, Mr. Gale. Amendment No. 70 seeks to do precisely the same as amendment No. 153, moved by the hon. Member for South Swindon (Anne Snelgrove), but in a slightly different way. We want to clarify the precise meaning of what constitutes a private dwelling.
At present, clause 17 does not specify what is a private dwelling, and the explanatory notes are not clear about it either. The Select Committee criticised that terminology, and the Government have made no change. It is therefore necessary to amend the provision so as to prevent confusion arising over the powers of entry once the Bill has been enacted.
It is important that constables and inspectors are aware of what property they can enter, especially when an animal is in distress, as tensions can be heightened and things can become emotional. For instance, an outhouse, a yard or even a garden could be deemed to be a private dwelling—they are places where animals may be in distress and require urgent help. When animals are in distress, constables and inspectors  should not have to wait for warrants to enter such areas simply because they are not sure whether they are private dwellings. Amendment No. 70 would make it explicit that a private dwelling shall be regarded as being an enclosed residential building only.

Paddy Tipping: This is an important debate. I look forward to hearing the Minister clarify the situation.
It is vital for organisations such as the RSPCA to have a clear understanding of what constitutes a private dwelling. Much abuse takes place in outbuildings, yards and sheds. If they are defined as part of a private dwelling, the question arises of whether a warrant is necessary. I hope that the Minister will listen carefully to the debate and will reflect on the Select Committee’s report.
We will have the opportunity to discuss the issue again when we reach clause 56(3), which defines a private dwelling. It states that a private dwelling includes
“any yard, garden, garage or outhouse which is used for purposes in connection with it.”
We may not be able to resolve that question this morning, but I hope that the Minister will talk with his officials and relevant organisations about clarifying the matter.

Roger Gale: I hope that the Minister can adjust his notes in light of my reshuffled selection list.

Ben Bradshaw: Thank you, Mr. Gale. I am grateful to my hon. Friend the Member for Sherwood (Paddy Tipping) for drawing the Committee’s attention to the definition given in clause 56(3). It was the subject of considerable discussion by the Select Committee in its pre-legislative scrutiny and also among officials. I hope that this does not sound classist, but the sort of judgment that I instinctively came to when trying to visualise what is meant by a private dwelling was a small terraced house, with a little garden not accessible from the street and a little tool shed at the back. That is rather different from a large rambling farmhouse with lots of outbuildings and a huge private garden. The question is: where does that private garden begin or end? Those matters are not, I suspect, easy to define, and we shall probably discuss them again on clause 56. However, I simply want to make it known that we had some difficulty in doing what the Select Committee asked for, which was to come up with a firmer definition of a private dwelling.
Amendment No. 154, tabled by my hon. Friend the Member for South Swindon, concerned powers of inspectors or constables to enter premises where they reasonably believe an animal in distress is to be found. There may be situations in which the emergency is clear, but equally there may be some in which it is only perceived. I appreciate that my hon. Friend has tried to anticipate that difficulty by using the phrase “serious and immediate danger” so that the proposed power of entry would not extend to animals that were  merely likely to suffer. However, I suggest to her that immediate danger remains a matter of perception and degrees.
We do not believe that it would be proportionate to allow inspectors into people’s private homes in each and every situation in which they perceived an emergency. The Bill would become disproportionate in that case. It is clear from human rights law and from guidance that we have received from the Home Office that a proportionate solution is to require that an inspector who encounters what he or she perceives as an emergency in a private dwelling must satisfy a magistrate as to the reasonableness of that perception. I see merit in the concern that that would delay action in cases of animal suffering, but is important to bear it in mind that delay would not prevent action.
The police routinely obtain warrants to enter private premises, often in the course of investigating more serious crimes. We are not convinced that wider powers of entry are needed for animal welfare offences than for other criminal activities.

Bill Wiggin: Somebody who is running a fraudulent activity from their front room is very different from someone with a horse on their premises. We are concerned about whether the shed in which such a person is more likely to keep a horse counts as part of their dwelling. For example, if they are using it as an office, it does not. There is an anomaly here.
Mr. Hollobonerose—

Ben Bradshaw: I give way to the hon. Gentleman.

Roger Gale: Order. It is customary for the Minister to respond to one hon. Member before I call another one.

Ben Bradshaw: I was not going to be very helpful; I was going to say that we shall come to the definition of a private dwelling in a moment. We are now talking about powers of entry.

Philip Hollobone: I am not a great legal expert, but I believe that if a police officer were outside a private dwelling in which a person was clearly in pain, the officer would not require a warrant to make an entry. In the case that we are considering, of an animal suffering in pain, under the Bill the police officer would require a warrant.

Ben Bradshaw: I was going to give an example, which has been given in the past, of a dog hanging itself by its lead from a balcony. A concern was expressed that enforcement agencies would not be able to intervene in that case, in which it was unambiguously apparent that if nothing was done the dog would die. My advice is that the police and emergency services already have adequate powers under section 17 of the Police and Criminal Evidence Act 1984 to enter to prevent serious damage to property, which includes animals, in this case. They would also have a defence under section 5 of the Criminal Damage Act 1971 for any damage that they might cause to property. They currently use those powers and I am not aware that they have proved in any way deficient.
I do not think that it would be appropriate to expand those powers beyond police officers by amending clause 17. That would give powers to inspectors as well, and would risk incompatibility with our human rights obligations. It may be worth noting that the police are happy with the powers set out in the Bill.

Anne Snelgrove: Subsection (2) seems to suggest that no private dwellings can be entered, even with a warrant. That was the point of amendment No. 153. Subsection (2) says:
“Subsection (1) does not authorise entry to any part of premises which is used as a private dwelling.”
I seek clarification from the Minister that private premises can be entered.

Ben Bradshaw: Yes, they certainly can, with a warrant. If my hon. Friend looks at clause 46, that will become even clearer to her.
Amendments Nos. 153, 155 and 156 relate to the power to enter private dwellings to search for fighting animals or to inspect farm premises as well as to entry in emergencies. Clauses 17, 19 and 24 already provide for powers of entry. Therefore, there is a right to enter, and any obstruction will be an offence. That is provided for in paragraph 13 of schedule 2. Such a right to enter does not apply to dwellings, but if there is a need to enter a dwelling, again clause 46 makes it clear that a warrant can be applied for.
Hon. Members will see that clause 46 allows for the grant of a warrant to enter a dwelling not only under the first condition but also under the third and fourth conditions, if they apply. Similarly, if there is a need to use reasonable force to gain entry—for example, if there is nobody at the premises and the door is locked, or if the occupier refuses to co-operate—it is possible to apply for a warrant under clause 46 to allow the use of reasonable force to gain entry. On that basis, I urge my hon. Friend to withdraw her amendment.
Amendment No. 70, in the name of the hon. Member for Leominster, which we have now brought forward, seeks to narrow the definition of a private dwelling and thereby extend the range of premises to which entry can be gained without a warrant.
As I said at the beginning, we are well aware of the concerns relating to the power to enter private dwellings in an emergency, which are inextricably linked to our definition of a private dwelling in clause 56(3). I presume that the amendment is intended to be combined with the removal of that definition. For the benefit of those not acquainted with this issue, clause 56(3) defines a private dwelling as including yards, gardens, outhouses and garages. As the Bill requires a warrant before entry can be gained to private dwellings, the definition of a private dwelling becomes key to the scope of the Bill’s power of entry.
The definition of a private dwelling was included, as I said earlier, at the request of the Select Committee when it conducted its pre-legislative scrutiny of the Bill in autumn 2004. The choice of this definition was, as with scoping all our powers of entry, a question of balancing human rights against the concern for animal suffering. We believe that the majority of the  population would consider their garden, sheds or outhouses, which may be full of tools or bicycles, to be part of their private dwelling and would not expect the police or inspectors to be able to demand entry to them without good grounds and a warrant to prove it.

Norman Baker: Will the Minister give way?

Ben Bradshaw: I want to go into this matter in some detail, so the hon. Gentleman may like to intervene a little later.
I accept that there is concern that if an animal is suffering, or is likely to suffer, in a garden or outhouse, a warrant would still need to be obtained before entry could be gained to attend to it, which would lead to delay. I know that the RSPCA is concerned about that. However, I emphasise that powers of entry in such situations do not currently exist, even if there is an emergency and the animal is in a garden. Often the RSPCA is granted access by the owner of the premises, and we hope that that will continue to be the case, but it has no current power to enter without the owner’s consent. As has been said a number of times in our debates on the Bill, the RSPCA says that it does not want extra powers. The Bill would in future enable the police or inspectors to gain access with a warrant. That is progress—they do not have that ability at present.
Would the hon. Gentleman like to intervene now?

Norman Baker: Yes. I am grateful to the Minister.
The Minister is talking about proportionality under human rights law, which is a proper approach to take, but proportionality suggests that a different approach should be taken to, on the one hand, an enclosed building such as a garage or outhouse, where activities may be going on and individuals would not want the police to interfere, and, on the other hand, to a yard or garden, which is by definition open to the public in the sense that people can see what is going on. Therefore, resisting entry to areas that are already visible to the public—so not private in the same sense as an outhouse or garage—is not reasonable.

Ben Bradshaw: I am not sure that I agree with that definition. I am not sure whether most people would consider a small, enclosed garden at the back of a terrace house to be open to the public, but I will deal with the definition in a little more detail.
One of the things that has been overlooked by those who have concerns about the definition is that the outhouses and sheds must be used for purposes in connection with the private dwelling for them to fall into the definition of “private dwelling”. If I keep my children’s toys in my garage, that is a purpose connected with my private dwelling, and the garage would be considered part of my private dwelling. If, on the other hand, I run my animal boarding establishment from my garage or from premises in my garden, then that garage or that part of the garden will not fall into the definition. That is an important part of the definition and, I hope, ought to address most of the concerns.
In passing, I would comment that there is no such thing as a standard definition of a private dwelling. In fact, most legislation does not even attempt to define it. Maybe we should not have tried, but we were asked to by the EFRA Committee. The Police and Criminal Evidence Act 1984 contains no definition for the purposes of exercising police powers. The Wildlife and Countryside Act 1981 also has no definition, nor does the Natural Environment and Rural Communities Bill, which is currently being considered by the House of Lords.
The other point to make about the amendment is the suggestion that a warrant should be necessary only where the building is used exclusively for residential purposes. We rejected that approach, because we feel that entry to a person’s home should still be subject to safeguards, even if he or she uses that home for other reasons as well. If I keep my business records and accounts in my kitchen drawer, and my children do their homework at the kitchen table, then the property is still first and foremost a home. It is reasonable to require a police officer or inspector to obtain a warrant to enter that place.

Norman Baker: If we are inventing a new definition of a private dwelling which, as the Minister says, seems to cross over into other legislation, may I ask what discussions he has had with other Departments or what advice has been sought from them?
Clearly, if the definition of a private dwelling is established here, it could be used in court cases to run across other legislation. That could have unforeseen consequences for existing legislation, which may not be helpful in terms of, say, enforcing criminal law.

Ben Bradshaw: Yes, we have had discussions with the Home Office and it is content with the definition included.

Paddy Tipping: The area is difficult and the Minister is clearly trying to be helpful. I want to be absolutely clear in my own mind about the situation. If the outbuildings are not used primarily for activities that would normally take place in a house, then a warrant would not be necessary. Is that correct?

Ben Bradshaw: That is certainly my understanding of how it would work, yes.

Norman Baker: To follow that last point, that may be the case in terms of an outhouse, but obviously an outhouse is situated in a garden, and presumably could not be reached without going through the garden.

Roger Gale: Has the Minister concluded?

Ben Bradshaw: Yes.

Bill Wiggin: Behind the amendments lies the fact that, as we are all aware, acts that we want to see banned by the Bill take place in people’s houses. We seek to ensure that, if acts of cruelty or failures of duty to secure welfare take place in outhouses, sheds, gardens or garages, we can get the inspectors in as quickly as possible. The idea that that is difficult is a  reasonable defence by the Minister, but the Bill later goes on to give the power to detain hovercraft, so the fact that this provision would be difficult should not be insurmountable.
The Minister’s definition is that if buildings are being used for keeping animals, they cannot be deemed to be part of a private dwelling; for example, someone has a horse that they are keeping in an outbuilding. If that is the case, I am content that we have achieved what we set out to do. We need to be sure that that is right. The minute one puts one’s pet in the outbuilding, one is now not using it primarily as part of one’s dwelling.

Norman Baker: I return to the point that I just made, which I hope is important and worth one or two possible glances. It is no comfort to have a different definition of an outhouse if, for the purpose of the Bill, the outhouse is in a protected part—in other words, a garden or a yard—that one simply cannot cross to get to the building in question.

Bill Wiggin: That is a very important point. I conclude by asking the Minister to go away and think about this. He is right; we do not want acts of cruelty to be allowed to continue and a warrant to have to be sought simply because of the geography of a particular building. On the other hand, he is also right to say that we do not want troops of inspectors marching through a property while someone is watching the telly simply because they have a budgie in the garage, or whatever. We must get the balance right.

Philip Hollobone: An RSPCA inspector standing outside a property with a detached garage and hearing an animal in distress in the garage will not know whether the children’s toys are in the garage and, therefore, will not know whether to apply for a warrant.

Bill Wiggin: That is another important intervention. The Minister will have taken the temperature of Committee members on this point and will know that there are genuine concerns about what is an outhouse and what is an outbuilding. We do not have a problem with his attempts to define a private dwelling, and we do understand the privacy issues. This is a proper challenge, which the Government should think about. With that in mind, I am content not to press my amendment to a vote.

Anne Snelgrove: I am quite happy with the Minister’s explanation, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 ordered to stand part of the Bill.

Clause 18 - Orders in relation to animals taken under section 16(5)

Bill Wiggin: I beg to move amendment No. 209, in clause 18, page 10, line 3, at end insert
‘provided that it is satisfied that an information has been laid for an offence under any part of this Act relevant to an animal or animals that are the subject of the application.’.

Roger Gale: With this it will be convenient to discuss the following amendments:
No. 175, in clause 18, page 10, line 27, leave out subsection (5) and insert—
‘(5)The appropriate national authority shall issue guidance about the exercise by a court of powers under subsection (1).
(6)In determining how to exercise its powers under this section, the court shall have primary regard to the welfare of the animal.’.
No. 130, in clause 18, page 10, line 28, after ‘regard’, insert
‘to the interests of the animal and’.

Bill Wiggin: I am grateful to you for lumping amendment No. 70 in with the other amendments to the previous clause, Mr. Gale, because I may need to detain the Committee briefly on this.
Amendment No. 209 would ensure that orders under clause 18 were made only when necessary. Without it, the Bill allows an order to be made that interferes with due legal process by ordering the destruction or disposal of the subject matter of any proceedings. All investigators are bound to preserve exhibits for use in court for examination by the defence. Failure to do so often means that the proceedings are dismissed for abuse of process. Without the amendment, a court could allow the destruction or disposal of an exhibit before the person who was to become the defendant had the chance to have the exhibit examined by his own experts. At the time of the application, he would not know whether there was a need for such an examination. Furthermore, the fact that information has been provided in relation to an offence entitles a defendant to apply for legal aid.
Although I appreciate that there may be a need to treat an animal, and I am certainly not against any animal receiving any treatment that it needs, I am concerned that that would interfere with the defendant’s right to receive due process. Will the Minister explain how he intends the legislation to cope with that anomaly?
Amendment No. 175 is in two parts. The first part would ensure legal consistency by allowing the appropriate national authority to issue guidelines as to how the court was to exercise the powers laid down by subsection (1). Much of the clause will be determined by case law, but I am quite sure that the courts would find it useful if the Government issued some guidance on how to interpret the clause so that there was greater consistency.
The second part of the amendment, which would replace subsection (5), is designed simply to ensure that the welfare of any animal taken into possession is given priority and is certainly given precedence over its  value, which I am sure all hon. Members would agree is a rather crude measure of the importance of an animal.
Clause 18 makes no mention of giving primary regard to the welfare of the animal in question. For example, a court may predominantly examine the financial costs and the animal’s value, rather than give priority to what is right for that animal. In those circumstances, if an animal has a severe but not necessarily incurable illness, the court may determine that it is right to put the animal to sleep, especially if the costs of undergoing treatment are considerable. That may not, however, be the owner’s wish, and the animal should be given the opportunity to live if there is a good chance that it can survive.
Amendment No. 130 would ensure that the animal’s interests were put first, as in amendment No. 175. The RSPCA supports both amendments. Subsection (5) does not explicitly state that the Bill will put the animal’s interests first. I am curious about why matters of value and cost must always come second to the interests of the animal; we should do everything that we can to safeguard animals, even if it means extra costs. It is a responsibility that we undertake as owners of an animal and as a society. Under the duty of care, animal owners are obliged to put the interests of their own animals first, and it would be in keeping with the spirit of the Bill and legally consistent if the courts had to do the same. The amendment would ensure that that happened.

Ben Bradshaw: With your leave, Mr. Gale, as well as responding to the amendments, I want to move amendment No. 136 formally.

Roger Gale: Order. Let me explain: amendment No. 136 has already been debated with amendment No. 135. When amendments are debated collectively they are voted on separately, if that is appropriate, in the order in which they appear in the Bill. Amendment No. 136 will be called after this group of amendments.

Ben Bradshaw: I am grateful for that clarification, Mr. Gale. I am also grateful to the hon. Member for Leominster for tabling amendment No. 209 and raising the issue, which merits an explanation.
The proposal in the draft Bill published in July 2004 looked very different from the present clause 8. There has been much simplification since then and the procedure for disposing of an animal under clause 18 has been separated from the need to bring a prosecution. The equivalent power in the current law is in the Protection of Animals (Amendment) Act 2000, but that law is limited to animals kept for commercial purposes, and for an order for disposal to be made under the Act there must be an ongoing prosecution.
Clause 18 has been drafted much more widely. If an animal has been taken into possession under clause 16(5), that would make it possible to apply for a disposal order. The owner or keeper of that animal does not have to be prosecuted for an offence. I shall state the reasons for that, and then deal with possible concerns.
This change in the Bill will close a loophole in the law, and it is very important that that is done. It is not difficult to envisage a situation in which, even if one did not want to prosecute the owner, one might want to remove the animal from that situation and to take a decision on its future. An obvious example would be that of an old, infirm or mentally impaired owner who is incapable of adequately providing for the animal. The animal might need to be removed, but it is unlikely to be in the public interest to bring a prosecution against the owner.
Secondly, it might be in the interests of the animal to be disposed of quickly. If a dog is taken into possession, for example, it might be in the dog’s interests that it is ordered into the care of a sanctuary so that it can quickly be rehomed. Until an order has been made for that dog, it would have to remain with the seizing authority.
Thirdly, because of resources it is not practical to require a seizing authority to keep an animal until a prosecution is initiated. I agree that in many cases a prosecution could be mounted quickly, but equally, in other cases, it might take some time. Local authorities do not always have the funds or the facilities to accommodate a herd of cattle for six months, for example, while they gather evidence for a prosecution. Even if they did, I hope that none of us would consider that a justified expenditure. Those are the reasons why I have chosen to separate the power to dispose of an animal under clause 18 from the need to initiate a prosecution.
I shall now deal with the possible concerns. I appreciate the fact that the anxiety about our approach stems from concern that the interests of the animal’s owner should be adequately protected. My right hon. Friend the Secretary of State signed the declaration under section 19 of the Human Rights Act 1998 to indicate her belief that the Bill is human rights compliant. This is another part of the Bill in which human rights and animal welfare must be balanced, and we believe that we have struck the appropriate balance. We should not forget that an animal that is the subject of an application under clause 18 will have been seized because it was suffering or likely to suffer. If it was wrongly seized, the owner can apply under clause 18(1)(b) to have it returned. I have already agreed to consider amendment No. 68, which would require the person seizing it to notify the owner that they are doing so. Even if the animal is disposed of under clause 18, the owner remains entitled to be reimbursed for its value unless they are subsequently prosecuted and a deprivation order under clause 29 made against them.
There are two strands to amendments Nos. 175 and 130. The first seeks to include a provision that the courts should have regard to the interests of the animal when making a disposal order in relation to it. The second would require the appropriate authority to issue guidance to the courts on how to exercise their powers under this clause. On the first strand the hon. Gentleman raises an important point. The purpose of  the clause is to protect the welfare of the animal, but I am happy to consider further whether we need to spell that out for the benefit of the court.
We do not think it necessary to issue guidance to the courts about how they exercise these powers. The types of situation in which an order under clause 18 may need to be made are many, and each application will turn on its own facts and merits. It would not be appropriate for us to try to anticipate all those different situations and potentially constrain the court’s actions. On that basis and given what I have said about amendment No. 130, I urge the hon. Gentleman to withdraw the amendment.

Bill Wiggin: As always, I am grateful for the Minister’s comments. I am slightly concerned about one facet—the technical part. In the case of dogs and cats this is not quite so complicated, but more exotic animals are difficult to look after once they are seized. The concern was raised during the Select Committee’s evidence gathering that if the court disposes of such an animal, it is virtually impossible to proceed with the case. One cannot get legal aid. One cannot have one’s experts examine the issue and therefore defend oneself against the charges.
The other part to which I wanted to draw the Minister’s attention is the simple practicality of going to a magistrate to get one’s animal back when it has been seized. We are not dealing with normal situations when an animal is seized. The circumstances must, one would imagine, be fairly severe. However, if the circumstances are not severe, it should be easy to appeal against the seizure. I am not sure that we are a million miles apart on this.
The Minister mentioned the case in which a little old lady may have lost the plot to some extent. Her pets are taken away because that is in their interests, but if she subsequently recovers, she may feel very unhappy about it if she was not quite as ill as the person who removed her animals had thought. Again, there are good causes for appeal.
We want the animal’s interests to be taken seriously. That appears to be happening, and I am grateful for that, but I hope that the Minister will think about the difficulties in which this will place some pet owners. If he is prepared to nod his head in agreement, I will happily withdraw my amendment. His head has not moved much but I think he would probably like to think about it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 136, in clause 18, page 10, line 8, at end insert—
‘(1A)If an animal is taken into possession under section 16(5) when it is pregnant, the power conferred by subsection (1) shall also be exercisable in relation to any offspring that results from the pregnancy.’.—[Mr. Bradshaw.]

Clause 18, as amended, ordered to stand part of the Bill.

Clause 19 - Seizure of animals involved in fighting offences

Amendment made: No. 137, in clause 19, page 11, line 8, after ‘peace’ insert ‘is’.—[Mr. Bradshaw.]

Clause 19, as amended, ordered to stand part of the Bill.

David Drew: On a point or order, Mr. Gale. In the Chairman’s provisional selection of amendments to clause 20 of 17 January, there was a whole line of amendments to be discussed including new clause 13, which stands in my name. Those amendments have disappeared not only from the programming for clause 20 but from all programming. Is there an explanation for that?

Roger Gale: I apologise for the pause. I needed clarification because I was not party to that process. A number of amendments were withdrawn, with which the new clause to which the hon. Gentleman refers was grouped. The new clause will therefore be debated, as and when it is reached, with the other new clauses at the end of the Bill. Is that clear?
Mr. Drewindicated assent.

Clause 20 - Entry and search under warrant in connection with offences

Norman Baker: I beg to move amendment No. 23, in clause 20, page 11, line 26, after ‘8’, insert ‘[Pet fairs],’.

Roger Gale: With this it will be convenient to discuss the following: Amendment No. 28, in clause 29, page 14, line 8, after ‘8’, insert ‘or section [Pet fairs],’.
Amendment No. 30, in clause 30, page 15, line 36, after ‘8’, insert ‘section [Pet fairs],’.
Amendment No. 33, in clause 33, page 17, line 14, after ‘8’, insert ‘or section [Pet fairs],’.
Amendment No. 36, in clause 36, page 19, line 2, after ‘7’ insert ‘or section [Pet fairs]’.
Amendment No. 38, in clause 36, page 19, line 18, at end insert
‘(e)in the case of conviction for an offence under section [Pet fairs], to anything used to commit the offence.’.
New clause 2—Pet Fairs—
‘(1)A person commits an offence if he sells an animal in the course of or in connection with a pet fair.
(2)A person commits an offence if he arranges an animal fair or knowingly participates in making, or carrying out, arrangements for a pet fair.
(3)In this section, “pet fair” means an event—
(a)which is open to the public (whether on payment or otherwise),
(b)at which animals are sold (or which is held with a view to the sale of animals) as pets, and
(c)where any such sale is made (or is to be made) in the course of a business.
(4)Where a business consists wholly or mainly of the keeping or selling of animals, an event held in the ordinary course of that business at premises ordinarily occupied for the purposes of that business shall not constitute a pet fair.
(5)For the purposes of this section—
(a)“selling” an animal includes—
(i)offering or exposing it for sale,
(ii)exchanging it, or offering or exposing it for exchange, and
(iii)transferring, or agreeing to transfer, ownership of it in consideration of entry by the transferee into another transaction;
(b)the sale of an animal “as a pet” includes its sale for private captivity or private husbandry, but does not include its sale for any purpose relating to agriculture.’.

Norman Baker: I shall spend very little time on the amendments, as they are merely consequential on new clause 2, to which I shall devote my time. The issue is pet fairs. I suspect that there is common ground in Committee on the fact that the present law needs to be clarified. Section 2 of the Pet Animals Act 1951 states:
“If any person carries on a business of selling animals as pets in any part of a street or public place, or at a stall or barrow in a market, he shall be guilty of an offence.”
That may have looked clear to legislators in 1951, and may even look clear to us now. However, practice on the ground has demonstrated that that section is subject to uncertainty. What exactly is a market, a public place or even a pet? There have been uncertainties as to what the law means, notwithstanding the 1983 amendment to that Act. As a consequence, we have a patchwork of enforcement across the country, with different local authorities taking different views. Some have deemed the 1951 Act to represent a ban on pet fairs, and I subscribe to that view. Others have taken the contrary view. Some court cases have upheld the suggestion that the 1951 Act prohibits pet fairs, so there is case law for those of us who do not wish to see pet fairs allowed.
The good news is that the Government have taken the opportunity in the Bill to recognise that the position must be clarified. The bad news is that they have concluded that pet fairs should be legalised. I think that we should stick to the spirit of the 1951 Act and the rest of the Bill by outlawing the activity in question.

Bill Wiggin: Will the hon. Gentleman give way?

Norman Baker: Yes. I am coming on to the problems with pet fairs, but I shall give way at this point.

Bill Wiggin: I am grateful. My difficulty with the new clause is that there are people who breed birds or other animals in captivity and wish to sell them responsibly. Then there are the irresponsible sales of wild-caught birds that may be unwell. How would the hon. Gentleman separate the two? Without an outlet for the birds bred legitimately, the new clause may cause more trouble than the problem he is seeking to solve. At the same time, I support what he is trying to do about the bad sales—the illegal sales and the sale of wild-caught birds.

Norman Baker: There are currently a number of problems with selling animals; I shall come to that point. On the legal outlet that the hon. Gentleman seeks, there are people licensed to sell animals—I refer to pet shops. There should be a trade through pet shops if necessary. The problems are significant and  should not be underestimated. There is no reason for leaving the situation as it is: unclear and unsatisfactory in welfare terms.
The welfare implications of pet fairs are, I believe, accepted by many. There are concerns that animals are regularly transported large distances across the country, possibly to be sold. Often, the animal’s welfare requirements mean that the transportation in itself causes welfare problems, as can the temporary accommodation in which the animals are held. Such problems are particularly possible with the transportation or temporary accommodation of exotic species that are unaccustomed to living in this country’s environment. Yet if we go down the road of licensing pet fairs, as the Government wish, they will inherently accept that it is permissible to transport and sell animals in that way. In other words, they will say that the welfare implications are rather unimportant, or that they cannot be met. I am not convinced that either conclusion is right.
The second problem with pet fairs at present is that they encourage a trade in wild-caught and rare species, when the value of those animals may necessarily be greater than that of others. Those species often need specific living environments or may be CITES-related species. With the best will of those organising pet fairs, the fairs may act as a cloak for the illegal sale of species that are, by law, protected and that should not be subject to such trade.
The third problem is that of necessarily bringing together animals when disease may be present, and that can cause health implications for both animals and humans through exposure to, and the exchange of, such animals. I am afraid it is also often true that animals may be diseased at such pet fairs, as has been proven by examination and the evidence of animal welfare bodies. That reinforces the point about the possibility of disease spreading, and suggests that there is insufficient process in place to prevent such diseased animals from being offered for sale or from being sold. The consequence of such sales is often that animals may subsequently suffer or die; indeed, they may need to be put down. The problems are well documented, and their existence means that the Government’s preferred solution, the licensing of pet fairs, will do nothing to arrest them.
A further problem is that, should licensing take place, we will see a considerable increase in the number of pet fairs. There is clearly a demand for pet fairs in certain areas at present, but that demand is being suppressed by local authorities, many of whom are refusing to licence them. Presumably, if the Government’s preferred solution came forward, those areas would be obliged to license pet fairs, which would increase in number across the country—along with an increase in the problems to which I just referred. That, in itself, would naturally provide an enormous challenge for local authorities in terms of both enforcement and their workload. They would either be spending a great deal of time and money in checking these pet fairs or, as I suspect, they would be  unable to do the job properly with the resources available. Consequently, the disease and welfare problems to which I referred would be allowed to occur without those local authorities taking remedial action.
It is important to stress that my new clause does not prevent members’ events, such as Crufts. It explicitly does not prevent pet shops from operating; indeed, it prevents no displays where sales do not take place. For example, many members will have seen outdoor events—perhaps a Saturday afternoon fair—where birds of prey are part of the attraction. I do not feel the need to curtail such events because those birds are held by someone who is responsible and knows how to deal with them. The birds are subsequently taken back and are not there to generate finance through direct sales.
In his intervention, the hon. Member for Leominster raised a legitimate point about the legitimate avenue for sales, and I do not wish to dissent from it. I have concluded—by looking from the other end, as it were—that pet fairs present insurmountable welfare problems and that it is not appropriate to allow them to continue. There is, however, a need to recognise that some people have an animal that they want to sell quite legitimately and responsibly and in a way that protects its welfare. In those circumstances, one must decide who can sell the animal and whether it will be looked after responsibly. It should therefore be possible to engage with a proper licensed premises, namely a pet shop, for that purpose.
Should it be possible for someone to sell an animal to another person without the involvement of a third party, namely a pet shop? It probably should be, and I will be open to any suggestions about how that can be managed—frankly, I do not have the answer myself—in a way that satisfies animal welfare legislation. I am convinced, however, that pet fairs do not satisfy that legislation, so it is appropriate to tidy up the law to put an end to them for good animal welfare reasons, as new clause 2 would do.

Barbara Keeley: I have concerns about pet fairs or shows. First, as the hon. Gentleman has just said, there seems to be some confusion about the new Bill and the legality or otherwise of commercial sales of animals in public places such as pet fairs or shows. We have heard that section 2 of the Pet Animals Act 1951 has been used to regulate the sales of animals in pet shops, and has therefore made it an offence to sell animals as pets in public places. The Bill seeks to regulate and license those activities. I understand that section 2 of the 1951 Act will be repealed, but this approach seems to have pitfalls and gives rise to concerns that it is right to debate here.
The term “pet show” seems to be used to cover both commercial pet fairs and the sort of member-only events that are run mainly to show animals and to allow animal enthusiasts to exchange information. It is important to find a way of differentiating between the two in the Bill. Although non-commercial sales may be involved in the enthusiast type of event, some local authorities also allow commercial pet fairs, as the hon.  Gentleman has said. I understand that reptiles and birds are offered for sale at many such fairs, but it is clear from briefings that the RSPCA has concerns, which I share, about the welfare implications for animals at those fairs.
The Bill clearly requires the needs of an animal that is being sold at a fair or a show to be met both during transport to the show and at the event. Those needs include appropriate noise levels, temperature, light levels and proximity to other animals. These one-day shows can be held in town halls and conference centres, and speaking as someone who has spent a great deal of time—indeed, probably too much time—in both, as many Committee members will have done, it is hard to see how such places can provide suitable and safe environments.
Other concerns, as we have heard, are that commercial shows or fairs may lead to the sale of rare species and of animals that were captured in the wild. In many cases, there are consequent concerns about public health, as well as about the welfare of the animals being sold. It is fair to emphasise that the concern about public health is even more to the fore, given current concerns about the spread of avian flu.
The Bill proposes to license such events through secondary legislation and to allow local authorities to attend them to assess welfare standards. That, in itself, is a cause for concern, because there is the question of whether the local authorities will have the officer time and the resources necessary to police very large events or locations at which numerous events are held each year. Several local authorities have conference centres, and there would be a lot of pressure to hold many events each year at them. Moreover, the secondary legislation will have to be very tightly drafted if the sale of pets at commercial pet fairs or shows is to be licensed. It must be said that the RSPCA believes that only events at which adequate welfare can be ensured and enforced should go ahead. That is key, even if it is difficult to define.
My hon. Friend the Minister has helpfully circulated draft statutory instruments and codes of practice to members of the Committee. As the hon. Member for Lewes said, there can be no objection in principle to enthusiasts holding member-only events that involve the showing of pets. However, concerns have been expressed about the commercial sale of animals at pet fairs or shows—and, indeed, about whether such events should be licensed at all. I would be interested to hear my hon. Friend assure us on that point.

Philip Hollobone: I agree with the hon. Lady that we need to separate pet fairs and pet sales. I have received a letter from Mr. Page, a constituent, who is president of the Corby and District Aquarist Society. I shall share his words of wisdom with the Committee. He wrote:
“Many fishkeepers enjoy exhibiting their fishes at Open Shows held around the country throughout the year. Should these Shows require a Licence to operate then this will make most of these events non-viable to those Societies organising them. The crux of the matter seems to be the classification of such events under the blanket description of Pet Fairs rather than as Pet Shows. At fish Open Shows there is minimal trading ... There is no comparison  between a simple one-day Aquatic Society event and large, trade-driven Animal Fairs. The eventual closure of such events through financial strictures would lead to the collapse of the organised aquarium hobby, which does much good, especially in conservancy matters. Several species of fish, now extinct in the wild, continue to exist and thrive in captivity and there is much evidence that captive breeding lessens the need to take fishes from the wild. Many of the most popular freshwater fishes are now captive bred by the aquatic trade and this also an area of increasing possibilities for the captive breeding of marine fishes.”
I have also received some interesting correspondence from Mr. John Catchpole, the director and publisher of Parrots Magazine—which I am sure the Minister reads quite often. Mr. Catchpole writes:
“We need to understand that there are two distinct groups of people who sell birds at pet fairs.”
The first is the dedicated aviculturist. Mr. Catchpole says that they are
“individuals who have a passion for birds and who consider the welfare of their birds to be of prime importance. They do sometimes sell their birds but this monetary factor is way down their list of priorities and birds are usually only subjected to one short journey.”
The second group comprises the traders, who he says are
“individuals whose prime objective is to make money. The welfare of the birds tends to be of little importance. They hawk their ‘stock’ around the UK at pet fairs with little regard for the welfare of the birds. Birds may be diseased, injured or in poor condition and are often subjected to a string of long journeys.”
The letter continues:
“It is this second group of traders that has created the animosity between genuine birdkeepers and animal welfare groups.”
He then writes:
“I ask you to understand this difference between the genuine birdkeeper and the unscrupulous trader ... The genuine birdkeepers should be allowed to display, exhibit and sell their birds without problem, as they are only interested in the hobby and do not have financial aspirations. It is the clubs and associations which do not organise their shows on a commercial basis that add value to the hobby and should be protected.”

David Drew: I received a similar missive. Mr. Catchpole’s letter was very interesting. Will the Minister dwell on what the EFRA Committee said in the report on its pre-legislative scrutiny of the draft Bill? The Committee concluded:
“Defra appears to have proceeded straight to the question of asking how pet fairs should be regulated, without first asking whether they should be clearly legalised. This is a significant deficiency in the approach adopted by Defra in updating animal welfare legislation. We recommend that, before Defra proceeds to draft regulations which would repeal the 1951 Act and introduce, in its place, a licensing regime on pet fairs, it first consults on whether pet fairs should be made unequivocally legal.”
That Select Committee debate was important. Ministers still have not explained why we need to change the 1951 Act other than to clarify whether it is currently being abused.
I turn to the letter that was quoted by the hon. Member for Kettering. Mr. Catchpole clearly identifies a difference between those who wish to show their animals—most of us would think that laudable, provided that such shows are properly conducted, and perhaps licensed—and those who wish to trade as a result. My fear is that, in trying to combine the two, we will open the floodgates, as Mr. Catchpole intimates,  and trading will become the norm at any show. That is the telling point. Therefore, the Minister must be very clear.
Some of us believe that there is merit in using secondary legislation to tighten up animal welfare, but here the reverse may be true: secondary legislation, if I may mix my metaphors, may open up a whole can of worms. Those who wish to display their animals may be overtaken by events and completely pushed away. I fear that, as a result of that secondary legislation, we will change the nature of the Bill and animal welfare legislation, and there will be a call to ban not just those who wish to trade but those who wish to show.
Therefore, we need to get this right. I hope that the Minister will gauge the temperature of this debate and explain why he is doing what he is doing, before we cement what he is trying to do into how he is trying to deliver it.

James Paice: I apologise to the hon. Member for Lewes for missing some of his opening words. I should preface my remarks by repeating what my hon. Friend the Member for Leominster has said several times: on issues of this kind hon. Members on these Benches have a free vote, so I am speaking personally rather than officially for the Opposition.
I largely agree with my hon. Friend the Member for Kettering. I am wary about the desire to ban pet fairs. As the Minister has repeatedly said, part of the idea behind the Bill is flexibility. When we are dealing with legislation that is already 44 years old, which at least needs clarification, as the Minister has rightly said, it is right to revisit the issue of pet fairs. I did not visit any pet fairs in 1951—I would have been in my pram if I had—but I venture to guess that today’s are significantly different events. However, a few important points must be made.
The first is the fundamental question: what is a pet fair? The hon. Member for Stroud rightly referred to the letter that most of us have seen, differentiating between enthusiasts and dealers, if I may put it in those terms. It is probably unfair to suggest that every dealer will automatically not care about the welfare of their birds, but there is no doubt that some are like that.
The hon. Member for Lewes has sought to be fair by saying that sales must be carried out in the course of a business and must be open to the public, exempting agricultural shows, sales in a private capacity and so on, but I am not convinced that that addresses the fundamental point. The purpose of the Bill is animal welfare, and I am not sure that one can easily say that this group of people looks after its animals and that group does not, which is implicit in saying that private sales are all right but that commercial ones are not. That is my first concern.
The second relates to a point that my hon. Friend the Member for Leominster touched on in relation to wild-caught fish. The hon. Member for Worsley (Barbara Keeley) rightly referred to the issue of wild caught birds, something that worries me considerably. Indeed, I tabled an Opposition amendment to the  Natural Environment and Rural Communities Bill to deal with the import of wild-caught birds, because it is a trade that should be stopped.
I want the entire activity to be eliminated. However, banning bird fairs would not necessarily stop it and, as my hon. Friend the Member for Kettering said about fish, captive breeding is important as a means of supporting wild populations or preventing further exploitation—and it sometimes leads to re-release into certain environments. Captive breeding requires a mechanism through which birds can change hands. A properly regulated pet fair can achieve that. Perhaps we should get away from the argument about the term “pet fair”. It is almost a pejorative term these days.
The last word of new clause 2 is “agriculture”. Having sometimes been a habitué of livestock markets, which are places of great information, I have often been astonished at the types of birds that are sold in poultry markets. I know that a livestock market is licensed by the local authority, but some of the species that are sold there are certainly nothing to do with agriculture. I have seen all manner of birds sold in livestock markets—not just ornamental poultry but ornamental game, goodness knows how many species of pigeons, finches and even the odd member of the parrot family. I am not a specialist and cannot describe them by species, but they would certainly not be exempted, because they bear no relation to agriculture. Perhaps they should not even be sold at those places, but they are. Yet I am not sure how that fits in with the question of pet fairs. I have never seen any such birds that were not in good condition and I see no problem in selling them in that way. They are sold in poultry livestock markets and in my view that is perfectly satisfactory.
There are all sorts of problems in attempting to ban pet fairs. I believe that they should be properly regulated. We have all received many letters and e-mails from organisations that, believing a ban to have been intended, want it to be made more explicit. Most of the problems involved could, I believe, be resolved by effective regulation and licensing. Naturally I am not in favour of regulation, but it is preferable to a ban and it is necessary in the present context.
There is a problem that the Minister needs to understand in dealing with the amendments. There is widespread concern about the existing situation which is confused, with some local authorities effectively taking the legislation as a ban and others turning a blind eye. A more pro-active approach to regulation and licensing is needed. A ban is not the right way forward, but I hope that the Minister will present a more comprehensive system through the code of practice and, perhaps, the licensing proposals, so that the law is clear and everyone knows what it is. Then we shall be able to ensure that sales continue, without the welfare implications that arise in some places.

Ben Bradshaw: This has been a useful, constructive and rational debate—not that our other debates have not been. My hon. Friend the Member for Stroud  wanted to know why we are bothering to clarify the law. There are two basic reasons. We have a legislative opportunity to do so, which we think will improve welfare. Also, for the reasons just set out by the hon. Member for South-East Cambridgeshire, we think that the law needs clarifying, because there is confusion—not least among local authorities about whether they should allow pet fairs.
The Government have tried very hard—successfully, I think—to make it an overriding principle of the Bill that it should not ban activities unless they are unavoidably cruel or we are convinced that the welfare needs of the animals involved cannot be met. That principle has run right through the Bill—consistently, until now.
The hon. Member for Kettering did a very good job of giving voice to some private individuals—not the sort of people who are usually vociferous or who join lobbying organisations—who feel passionately about their fish or birds. My hon. Friend the Member for Workington (Tony Cunningham) told me a story about his old mining constituency where one of the main pastimes is meeting to show budgerigars, some of which are sold or exchanged without money in these forums. It gives great pleasure to people who care deeply about their animals and their welfare.
It is not impossible in all circumstances to ensure that the welfare needs of animals at a bird, animal or pet fair or event are adequately met. It is therefore not justifiable to put a ban in the Bill.

Norman Baker: Having heard what the hon. Member for South-East Cambridgeshire said, may I ask for the sake of clarity whether there is a free vote for Government members of the Committee on the issue?

Ben Bradshaw: No, because the issue is not whether we believe that pet fairs should be banned, or that the welfare standards should be improved with a robust licensing system, but whether a ban should be in the Bill. The Government will not allow a free vote on that issue for the reasons I gave.
The principle running through the Bill is that activities should be banned only if they are cruel or if they cannot meet the welfare needs of the animal. That is not so in the case of pet fairs. We took a different view about tail docking, and we hope to give hon. Members in the whole House a free vote on tail docking on Report. This issue is fundamentally different, however.
In response to the points made by my hon. Friends the Members for Stroud and for Worsley, we are determined to ensure that there is a robust licensing system that meets the RSPCA requirements, quoted by my hon. Friend the Member for Worsley, that no event at which the needs of animals could not be met would be licensed. Yes, of course local authorities would retain the power not to license these events, and on that basis I urge the hon. Member for Lewes to withdraw the amendment.

Norman Baker: I am slightly disappointed by the Minister’s response, not least by its brevity. It may be unusual for an Opposition politician to complain about a Minister’s brevity, but I make that complaint on this occasion because hon. Members on both sides of the Committee identified some serious problems with pet fairs and the welfare of animals. They mentioned the trade in wild-caught species, local authority enforcement and the possibility of disease spreading, none of which were referred to by the Minister. I could also have mentioned impulse buying, which pet fairs engender.

Ben Bradshaw: We believe that all the issues raised by the hon. Gentleman should be dealt with under secondary legislation in a licensing regime. I did not go into those matters at great length because we are discussing the principle of whether we should do what the hon. Gentleman wants and stamp a ban in the Bill.

Norman Baker: I shall be very interested to see how codes of practice in secondary legislation stop impulse buying. It would be a major achievement if they did.
The Minister’s response does not meet the mood of the Committee, if I assess it correctly—people can tell me if I have the temperature wrong. My understanding is that it is sympathetic to the points made by the hon. Member for Kettering about the private breeders. They are not professionals; they have a hobby and they genuinely want to care for their animals. The same might be said about the exhibitors of budgerigars in the Whip’s constituency. The temperature of the Committee is shown partly in that no one is unsympathetic to that situation.
However, there is genuine disquiet in the Committee about the hawkers and traders for whom animals are a business from which to make a profit. Those people often do not care very much about the animals. I have not heard the Minister say very much about that issue. His idea of licensing will effectively give a stamp of approval to those people by encouraging them to take part in pet fairs. It will encourage the growth of pet fairs because those local authorities who currently say no will be obliged to license them in future. It will lead to an increase in impulse buying by increasing trade in wild birds and animals, often from endangered species. Let us be under no illusions: these pet fairs can be used as a way of laundering animals and no one wants to see that happen.
I am disappointed that the Minister seems rather complacently to believe that a licensing regime will deal with all these problems. I do not think it will. If the Minister does not want to have an outright ban, he ought to come forward with a different solution.

David Drew: Does the hon. Gentleman agree that there is some surprise that if the 1951 Act had been used properly there would seem to be room for prosecutions in this area? To my knowledge, there has been hardly any attempt to do anything. So, contrary to what the Minister alleges, I would see the benefit of change; I just do not see the benefit of legalising the trading of animals at pet fairs.

Norman Baker: I entirely agree. I thought that the hon. Gentleman’s contribution in the debate this morning was very helpful. The uncertainties around the 1951 Act have not led to many prosecutions. Local authorities are naturally reluctant to go down that road. That suggests that there may be a problem with local authority enforcement regimes generally in terms of their ability to deal with these issues. That will be made worse if they are to become even more common than at present.
If the Minister wants to avoid the consequences that I have outlined—an increase in the trading of captive and endangered species, an increase in impulse buying, an increase in the possibility of disease transmission and an increase in welfare problems that come from some of this trade, although not all of it as I am happy to accept the points made in Mr. Catchpole’s letter—he should come up with something better than a licensing regime.
If I read the temperature of the Committee correctly, we want to look at arrangements that allow the sort of trade referred to by the hon. Members for  Kettering and Stroud to carry on and outlaw the sort of trade that others described, involving hawkers going around with the primary purpose of making money. The Minister should reflect on that and come back with an amendment or a new clause that does that, rather than simply relying rather complacently on a licensing regime that will not work.

Roger Gale: Does the hon. Gentleman wish to press his amendment?

Norman Baker: I will withdraw the new clause, but I reserve the right to bring the issue back if the Minister does not come forward with something better himself.

Roger Gale: The new clause has not been moved.

Norman Baker: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Further consideration adjourned.—[Tony Cunningham.]

Adjourned accordingly at two minutes to One o’clock till this day at Four o’clock.